What presumption of innocence?

Peel Police officerers guard a crime scene. (J.P. Moczulski/National Post)

Police can share records even if charge dropped: court
Shannon Kari, National Post Published: Thursday, May 28, 2009

TORONTO -- An individual falsely accused of a crime does not have the right to stop police from keeping permanent records of the information and sharing it with other agencies, the Ontario Court of Appeal has ruled.

An individual's "right to liberty does not include the right to censor accurate information lawfully held," the appeal court concluded in a 3-0 ruling, written by Justices Marc Rosenberg and Kathryn Feldman, with Justice Robert Blair concurring.

More than 30 per cent of cases in the country are dropped without any criminal conviction, according to Statistics Canada. In Ontario, it's closer to 40 per cent that are stayed or withdrawn.

The Court of Appeal ruling means records of these charges and allegations can remain on police databases, and may end up being disclosed in situations where individuals are required to undergo background checks for employment or volunteer work.

Employers and agencies are entitled to "all potentially relevant information," said the appeal court, in ruling against a 57-year-old Toronto-area social worker who used to operate a group home.

"In a case where withdrawn charges which were false are disclosed, the potential employee has the ability to explain the circumstances to the proposed employer," the three-judge panel suggested.

Alan Davis, who represented the man, said he's considering seeking leave to appeal the ruling to the Supreme Court of Canada.

"This has significant implications," said Mr. Davis. "Put yourself in the position of someone who is the victim of a spurious allegation. Charges may be dropped, but years later you may not be allowed to coach your kid's soccer team," he noted.

While the ruling appears correct in its interpretation of the law, the result may be unfair for some people wrongfully accused of a crime, suggested David Fraser, a Halifax lawyer who specializes in privacy matters.

"In the minds of most people, if you are charged, you are presumed guilty. While the information on the databases is factually correct, there is no context. In many cases, people may not be given a chance to explain," said Fraser.

The decision overturned a Superior Court ruling in 2007 that found Peel Regional Police violated the rights of the man when it turned over records to Toronto police.

He had been charged with four counts of sexual assault and four counts of sexual interference in 2002 by Peel police, based on allegations by children in the group home.

All charges were withdrawn in the fall of 2003. He agreed to abide by a peace bond, but always insisted the allegations were false.

The man gave his consent for a "vulnerable persons search," when seeking work in Toronto after his charges were dropped. Peel police disclosed the records of the charges to its Toronto counterparts. The man alleged that group-home agencies learned of the charges, although both police services denied passing on this information.

The appeal court noted that the man "set in motion" the disclosure of information when he agreed to the background check.

The appeal court rejected arguments that the process violated his right to liberty and security under the Charter of Rights."Disclosure by one police service to another of information obtained by the public prosecution of an individual does not fall within this concept of liberty," it said. The Charter "does not guarantee a right to work in any particular job or career."